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Let’s start with the delightful video Drive: The surprising truth about what motivates us (10:48) that says that when performing mechanical tasks, an incentive such as money improves performance, but when the task is intellectual, it doesn’t! In fact, it leads to lower performance. Instead, the motivators are autonomy, mastery and purpose.
In the U.S., Article I, Section 8, Clause 8 of the Constitution allows government
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
In other words, “we’ll pay for your creativity”, but as the video shows, it doesn’t work that way.
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The second argument against copyright is its duration. Early copyright acts typically granted 14 years with a possible 14-year extension. It has been progressively extended to 42, 56, 74, 95 and 105 years, though the details vary by country and circumstance, e.g. in the U.S. it is the life of the author plus 70 years.
The idea that these extended terms are what motivates an author to write is preposterous. “Only now that I know my grand-children will benefit from its success, will I write that block-buster novel.” No, people write for many reasons: they want to communicate, they want to discover themselves, they want to change the world, and making money is simply one reason on this list. (I use writing in this example, but the same arguments apply to music, photography, video and art.)
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The third weakness of copyright stems from the Berne Convention, which automatically grants copyright upon creation of the work. (The U.S. came into line with this in 1988.) This, like the copyright clause, may have had the laudatory aim of supporting artists, but its effect, in conjunction with the extended durations described above, is to lock up culture in a private zone for a hundred years. No longer is it available for use or reuse.
Consequences
These three elements come together to create a de facto privatization of ideas. The creative thoughts of all — ideas, sayings, images, quotes — used to be part of the public commons by default, available for all to use, repeat and rework at will.
Now everything is potentially private. By taking a photo of a building, you may infringe copyright. You can’t sing “Happy Birthday” in public. Beware of background music in your video.
We are banning the use of ideas just as land use was stopped by the Enclosure Acts, and we are the poorer for it. Yes, artists, writers and inventors need to be paid for their contributions, but the present system is badly distorted. The actual creators are seldom the main beneficiaries; instead, corporations and patent trolls have separated the creativity from the reward by work-for-hire, buying IP or commandeering the majority of profit for themselves. The boundary between public and private is also under continuing pressure, for example, the 1998 Act (pejoratively the Mickey Mouse Protection Act because of the lobbying efforts of the Walt Disney Company) that extended copyright by 20 years, or yesterday’s court ruling that privatizes formerly public domain works.
There are large and visible signs that the present system is out of line with public sentiment. Most obvious is the widespread file-sharing of music and video. Another is the increasing creation of expressly public works, defended by such licenses as GPL and Creative Commons.
Proposals
- We need shorter copyright terms; 14 years sound more than adequate to me.
- We need opt-in rather than opt-out for registration. Opt-in was the status quo before the 1976 Act, requiring a notice of copyright to be affixed. The act aligned the U.S. with the Berne Convention, giving de facto copyright to all works. Opt-out will only worsen the problem of orphan works.
- We need fair use provisions to apply internationally. While limited exemptions from copyright are allowed in the U.S., few other countries allow this.
